Fake Whiskey Sold as the Real Thing

FDA History 04
by Harvey W. Wiley, M.D., the very first commissioner of the Food and Drug Administration (FDA), then known as the “US Bureau of Chemistry.”

     Whisky is a distillate, in a pot still, of the fermented mash of a cereal 
  or mixtures of cereals, containing all the natural elements of the grain and 
  the ethyl alcohol and its congeners, volatile at the temperatures of 
  distillation. It contains also the coloring matters and other soluble products 
  extracted from the wood (oak), in which it is stored and any new compounds 
  arising during storage. Potable whisky is kept in storage for four years.
     --Definition by Bureau of Chemistry. 
   Whisky is used extensively as a medicine. Physicians differ widely in regard 
to its medicinal value. The greater number of physicians think it has medicinal 
value. A very respectable number look upon whisky as unsuitable for any 
medicinal purpose whatever.
   The ethyl alcohol in whisky, when taken in moderation, is oxidized and thus, 
to that extent, becomes a food product. The damaging effects of whisky, however, 
are so great as to render it impractical for food purposes. As a beverage whisky 
was used extensively in this country before it was prohibited by Constitutional 
amendment and the Volstead Act was passed regulating the enforcement of the 
Constitutional provision. At the present time whisky for beverage purposes can 
only be obtained illegally. The sources of all illegal alcoholic beverages are 
shrouded in mystery, and severe and often fatal results follow their illegal 
use. The Volstead Act prescribes the conditions in which they may be used for 
medicinal purposes.
   In the fight for the food law the question "What is Whisky?" cut quite a 
figure. As early as 1898 the question of the character of distilled alcoholic 
beverages became quite acute. A heavy tax was laid on manufactured alcohol, both 
for beverage and industrial use. A great change had been made in the method of 
making pure alcohol. The continuous still, an implement which was continuously 
charged with a fermented mash and which continuously produced a very pure spirit 
revolutionized the process of distillation and made pure untaxed alcohol 
remarkably cheap. This method of making neutral spirit was entirely different 
from the manufacture of beverage whisky. The Congress of the United States had 
legalized the mixing of genuine whisky with this neutral spirit, and coloring 
and flavoring the mixture, by an Act defining rectifying. The so-called 
rectified product was placed on the market under the name and appearance of the 
genuine article. Existing law provided no penalties for this fraud.
   In order that consumers might be able to protect themselves, certain 
precautions were provided in the law. When a genuine whisky was first made it 
was always placed in oak barrels for aging purposes. A stamp was placed on the 
package, giving date produced, distillery making it, and other data required for 
revenue purposes. When the package was tax paid and ready for consumption, an 
additional stamp was affixed. The double stamp was the consumer's evidence that 
no rectifier had handled that package. This assurance however, affected only the 
first owner. When he decided to put the contents on the retail market he was 
under no further obligation. He sold it by the drink at the bar or in small 
packages to carry away.
   For the protection of the individual consumer, Congress, in 1898, passed the 
bottled in bond act. This law permitted dividing the product in fractions of a 
gallon, each package having a United States little green stamp pasted over each 
cork, showing the distillery where made, the size of the package, the date of 
manufacture, and a guarantee of freedom from rectification.
   This guarantee followed a rigid investigation of the wiles of the rectifier, 
carried on in 1898, in which the Bureau of Chemistry took an active part. It was 
then learned that there was a radical difference between a genuine whisky at 
least four years old and the rectified product bearing the same name. Under the 
pending food bill the rectifiers clearly saw that the products they were making 
would have to bear labels showing just what they were. Their whole business was 
founded on fraud. They made heroic efforts to prevent the passage of the Act. 
After its passage they moved heaven and earth, or better, hell and earth, to 
nullify its provisions. In the following pages will be found the high lights of 
these efforts.
   In the final hearings the rectifiers made every possible endeavor to kill the 
bill. Anticipating the probability of the passage of the bill, it was deemed 
advisable to study ab initio the whole question, historical and technical, of 
the manufacture of whisky in this and other countries. The investigations made 
by the Bureau of Chemistry covered fundamentally all angles of the problem. The 
results were collected in typewritten form and were the basis of all the 
testimony before the courts in the cases subsequent to the passage of the law. A 
witness to the sound conclusions drawn therefrom is the universal approval given 
by every Federal court before which the problem has been presented. No further 
publication of this brief has been made. I have, as one of my most precious 
documents, a copy, which, by the way, was the document called for by Judge 
Thompson of Cincinnati in the effort of the rectifiers to have Food Inspection 
No. 65 declared illegal.
   In closing the discussion of the pending food bill before the Interstate and 
Foreign Commerce Committee in 1906, the following reference to whisky (page 322) 
was made:
   Now we are ready, Mr. Chairman, for a short talk on whisky, if my assistants 
will bring the samples forward.
   I will not call attention to the testimony of Mr. Hough, because he was not 
under oath; it is not expert testimony, but I want to say just this in regard to 
his contention: As you know, I was instructed last year, with a view of 
executing our food law respecting imported food products, to visit the 
manufacturers in Europe, as far as I could in the time I had at my disposal; 
and, especially, I was instructed by the Secretary to visit the distilleries in 
Scotland and Ireland, where Scotch and Irish whiskies are made. I may say that 
it was a very pleasant task to which I was assigned. [Laughter.] I was also 
instructed to visit the Charente to see how the real French brandy is made, and 
the Gironde to see how the real French wines are made, and the Rhine and Mosel 
to see how the real German wines are made. I spent three months in this very 
delightful task.
   On my return I made a report to the Secretary of Agriculture, which he gave, 
in abstract, to the press, and which was published all over this country and in 
Europe. I stated that I had found that in Scotland whisky was made solely from 
pure barley malt, fermented in the proper way and distilled in a pot still, and 
that nothing else, in my opinion, was entitled to be called Scotch whisky except 
that product.
   I stated also that in Glasgow and Edinburgh I found distilleries importing 
American maize, Indian corn--I was glad they were doing it; it is a good market 
for us--and making a spirit out of it, and that this spirit was mixed with the 
real Scotch whisky and sent to this country; and I doubted if there was a 
barrel--and that was about true, as events have shown--of real Scotch whisky in 
the United States.
   I went to Ireland, and I found that whisky was made there exactly as it is in 
this country in Kentucky, just as Mr. Taylor (who is the only expert called on 
the question) has testified it was made. It is made there of barley malt and 
unmalted grain, just as in this country, the malt being used to convert the rest 
of the starch, and then it is fermented and distilled in a pot still and placed 
in the warehouse, just as it is in England and in Scotland.
   In this country, too, we have great distilleries of spirits which make 
immense quantities of alcohol, and our law permits the mixing of different 
spirits, under what is known as the rectifiers' clause of the internal-revenue 
law, which says that anyone who "mixes without rectifying" these spirits and 
makes a spurious whisky or gin or brandy shall be deemed to be a rectifier and 
must take out a rectifier's license. So that the law specifically says in this 
country that every mixed whisky is a spurious imitation of whisky. That is the 
act of Congress of the United States, a pretty good authority when it comes to 
definitions of that kind.
   I said to the Secretary that in my opinion, if I were enforcing the law about 
whiskies coming to this country--I am not; I have simply tried to get all the 
information I could, and I did not want to begin to enforce a law without 
knowing what I was doing--I believed I could exclude from this country, under 
our law, any of these rectified whiskies which were offered.
   At that time, while I was in London, they were about to begin a great trial, 
which it was said would be the greatest trial that ever took place in that city 
in regard to a manufactured product, in which a publican had been cited under 
the English foods act for selling a bottle of whisky which was not of the 
character, quality, and kind demanded. That is the language of the English food 
act, and a very good one it is. That one sentence is the whole essence of the 
   This publican was cited to appear. He was defended by the greatest lawyer in 
England, Mr. Frederick Moulton, the leader of the English bar; and I was told 
that $50,000 (£10,000) had been raised simply to pay the legal expenses of the 
defense. This poor publican was worth nothing, but he was the man who was 
charged with this offense, and this great rectifying industry was behind him. 
They wanted to establish the fact that a rectified whisky was a Scotch whisky; 
and that was what this suit was brought for, to show that it was not. I was 
asked to go over there as a witness, and of course I could not go; but they 
introduced my report to the Court, which the judge promptly ruled out unless 
they produced me.
   Yesterday, after I left the committee, I got this cablegram from London: 
"Wiley, Agricultural Department, Washington. Whisky defendants convicted." And 
it is the best news I have had across the ocean in my opinion, for a long time.
   MR. MANN: Did you not see the account in the newspapers?
   DR. WILEY: Yes, this morning; but this came yesterday.
   Now, I want to say, Mr. Chairman, that I have not the least opposition to 
rectified whisky. I will admit, for the sake of argument, that it is better than 
the straight whisky. I. will admit it for the sake of the argument; I do not 
really think so, but I will say that it is better. That is what the magistrate 
said. I got the printed proceedings of the trial as they came off every week; 
they sent out a. bulletin, and they had expert witnesses to testify that the 
rectified whisky was less injurious, had less poisonous matter in it than the 
straight whisky, and the magistrate said: "Well, perhaps that is true. If so, 
why not say 'This is a rectified whisky'? because then you will get the trade."
   MR. RYAN: But that was not the question at issue in that case, was it?
   DR. WILEY: That was not the question at issue. The question was whether a 
spirit that had any Indian corn spirit in it was a Scotch whisky or an Irish 
   MR. RYAN: That was it?
   DR. WILEY: Yes, sir.
   MR. BARTLETT: It was sold as Scotch or Irish whisky?
   DR. WILEY: It was sold as Scotch or Irish whisky.
   MR. BARTLETT: And it turned out to be a rectified whisky.
   MR. RYAN: The extract of corn is what they objected to?
   DR. WILEY: Yes--spirit made from Indian corn. That covers this whole 
   When Lloyd Bowers reached the opinion that a neutral spirit, even one made 
from grain, was not entitled to the designation of whisky, even if it should be 
colored and flavored, it is difficult to understand why he decided that this 
article which was not a whisky could be added to real whisky, and then the 
mixture could be called whisky, provided the characteristics of the real whisky 
would not be too greatly diluted. Especially is this true when he had before 
him, not only the decisions of the Federal Courts, but also the opinion of the 
father of President Taft to the effect that neutral spirit was an entirely 
different article from whisky. He also had before him the opinion of the English 
Courts contained in Bureau of Chemistry Bulletin No. 102, issued Dec. 20, 1906. 
1 give here a synopsis of the decision of the English case:
   A whisky claimed to be Irish on the one hand and a second sample which 
claimed to be Scotch on the other, was sold to a customer as the best Irish and 
the best Scotch whisky. On analysis it was determined that it contained not less 
than 90% of silent or neutral spirit made of maize. In passing sentence the 
magistrate said:
     "The offence committed by both defendants is the same, and the same 
  practically in degree. * * *
     "It is time the fraud upon the public in the matter of the sale of whisky 
  was stopped, and, though doubtless these prosecutions are very costly to those 
  who engage in them, the information obtained and published in the course of 
  the hearing of these two summonses is most valuable, and the result of this 
  trial seems to me to afford ample justification for the prosecutions.
     "Great blame attaches, in my opinion, to the 'blenders' who supplied Wells 
  and Davidge with the articles they sold. I do not think much moral blame 
  attaches to the defendants themselves, as I believe they trusted to those who 
  sold the articles to them to supply them with that which they might fairly and 
  honestly retail to the public as Irish and as Scotch whisky, respectively; but 
  at the same time, in my judgment, it was careless of the defendants to sell 
  what they, did as they did, and since they only are before me they must pay 
  the penalty for their infringement of the law. * * * The defendants, Thomas 
  Samuel Wells and James Davidge, will each pay a fine of 20s and 100 pounds 
  costs or be imprisoned in default of distress for two months in the second 
   To continue the quotation from the final hearings:
     "Now, I say that that is a business which is perfectly legitimate in this 
  country. I am sorry that our laws are so hard on the man who makes a straight 
  whisky, and so easy on those who make the mixed whisky; because you can not 
  make or sell straight whisky except under a Government stamp, under Government 
  supervision. You can add nothing whatever to it, not even coloring matter, 
  except that when you take it out of bond and sell it you are permitted to 
  reduce it with distilled water under the supervision of Government officials, 
  to proof--that is, half alcohol and half water.
     That is the only thing that can be done. Then, if it is in a barrel, it has 
  the double stamp put on it to show that it is whisky right out of the 
  distillery. It can be. sold in bottles; you can pay the tax on it and take it 
  out of bond and put it up in any shape you please, or you can, under the law, 
  if you want to, have it bottled in bond. Those are the three forms in which 
  straight whisky can reach you. It can come in barrels, or it can be put up in 
  any kind of a package you please after you pay your tax on it, it makes no 
  difference what; or it can come bottled in bond, as this is. If any of you 
  have never seen a bottle of whisky bottled in bond, this is one. 
   MR. RYAN: The fact that it is bottled in bond is no evidence of purity or 
   DR. WILEY: It is evidence of quality; it shows that nothing has been added to 
it except what nature put in the distillate.
   MR. RYAN: Do you believe that when a blender or a rectifier adds anything to 
whisky he is doing something deleterious to health ?
   DR. WILEY: I do not think he intends to. He may do it unwittingly.
   MR. RYAN: The blenders and the wholesale liquor dealers and rectifiers in New 
York, for instance, are very much disturbed about this. I will state that I have 
received some seventy or eighty telegrams since last evening in connection with 
this matter. They fear that this law will show to the public, or attempt to show 
to the public, or the public will assume, that whisky bottled in bond is the 
proper thing and will injuriously affect their business, when, as a matter of 
fact, it is no evidence of quality or purity that it is bottled in bond, as you 
state now yourself.
   DR. WILEY: Oh, I do not think you have quite quoted me, Mr. Ryan. I said it 
was a guaranty of quality.
   MR. RYAN: Of quality, yes.
   DR. WILEY: But the word "purity" is used in two senses, unfortunately.
   With regard to foods, I never use the word "purity" except in one sense. A 
pure food is what it is represented to be. It has nothing to do with its 
wholesomeness at all. A pure food may be unwholesome, as has been testified 
here. You will see in my manuscript there that in showing what things occur in 
nature in foods I show that hydrocyanic acid, the most violent poison, occurs in 
a great many food products. They are pure foods, but they contain poisonous 
   The food bill became a law June 30, 1906. Immediately activities were began 
by the fake whisky interests to nullify its requirements. Rectifiers appeared by 
counsel or in person before the committee forming rules and regulations to carry 
the law into effect. They made no impression on that body. They then began to 
get in touch with the Secretary of Agriculture. These rectifiers were deeply in 
earnest. They wanted to know "just where they were at." They feared most of all 
the decisions of the Bureau of Chemistry. Here is one of the problems 
   Many letters are received by the Department making inquiries concerning the 
proper method of labeling blended whisky. Manufacturers are anxious to know the 
construction placed by the Department upon this particular part of the food and 
drugs act of June 30, 1906 and to ascertain under what conditions the words, 
"blended whisky" or "whiskies" may be used. The following quotation from one of 
these letters presents a particular case of a definite character:
     "On account of the uncertainty prevailing in our trade at the present time 
  as to how to proceed under the pure-food law and regulations regarding what 
  will be considered a blend of whiskies, I am taking the liberty of expressing 
  to you to-day two samples of whisky made up as follows:
     "Sample A contains 51 per cent of Bourbon whisky and 49 per cent of neutral 
  spirits. In this sample a small amount of burnt sugar is used for coloring, 
  and a small amount of prune juice is used for flavoring, neither of which 
  increases the volume to any great extent.
     "Sample B contains 51 per cent of neutral spirits and 49 per cent of 
  Bourbon whisky. Burnt sugar is used for coloring, and prune juice is used for 
  flavoring, neither of which increases the volume to any great extent.
     " I have marked these packages 'blended whiskies' and want your ruling as 
  to whether it is proper to thus brand and label such goods.
     "My inquiry is for the purpose of guiding the large manufacturing interests 
  in the trade that I represent." 
   In a subsequent letter from the same writer the following additional 
statement is made:
     "The reason for wanting your decision or ruling in this matter is just 
  this: No house in the trade can afford to put out goods and run the risk of 
  seizure and later litigation by the Government on account of the odium that 
  would be attached. to fighting the food and drugs act." 
   To this a formal answer was prepared by the Bureau of Chemistry, and signed 
by the Secretary.
     The question presented is whether neutral spirits may be added to Bourbon 
  whisky in varying quantities, colored and flavored and the resulting mixture 
  be labeled "blended whiskies." To permit the use of the word "whiskies" in the 
  described mixture is to admit that flavor and color can be added to neutral 
  spirits and the resulting mixture be labeled "whisky." The Department is of 
  the opinion that the mixtures presented cannot legally be labeled either 
  "blended whiskies" or "blended whisky." The use of the plural or the word 
  "whisky" in the first case is evidently improper for the reason that there is 
  only one whisky in the mixture. If neutral spirit, also known as cologne 
  spirit, silent spirit, or alcohol, be diluted with water to a proper proof for 
  consumption and artificially colored and flavored, it does not become a 
  whisky, but a "spurious imitation" thereof, not entirely unlike that defined 
  in Section 3244, revised statutes. The mixture of such an imitation with a 
  genuine article can not be regarded as a mixture of like substances within the 
  letter and intent of the law.
     (Signed) JAMES WILSON,
     Secretary of Agriculture. 
  Washington, D. C., 
  December 1, 1906. 
   Early in January, 1907, in the very first days of the enforcement of the law 
it was discovered that the Secretary of Agriculture was very much perturbed in 
regard to F. I. D. 45. At that time the star of the Solicitor of the Department 
was rapidly increasing in brilliancy. The time was speedily approaching when the 
head of the Department became only the vehicle to carry the will of the 
Solicitor into action. I was cited to appear in the Secretary's office on the 
22nd of February, 1907, for a conference on the whisky question. The birthday of 
Washington was used to perpetrate the first overt act against the food law. 
There were present at this conference the Secretary, and the Assistant Secretary 
of Agriculture, the Solicitor, Mr. George P. McCabe, and the Chief of the Bureau 
of Chemistry. The conference began by a statement by the Secretary that this 
conference should be behind closed doors and no report of it should be made in 
any way to the press.
   I was first asked by the Secretary if the Bureau of Chemistry still held to 
the principles contained in F. I. D. 45. I replied in the affirmative. He asked 
the Assistant Secretary, Mr. Hayes, his opinion in the matter. Mr. Hayes 
promptly voted in favor of the Bureau's definition of whisky. He then asked the 
Solicitor his opinion. He replied, "Dr. Wiley's definition of whisky is absurd. 
Whisky is any alcoholic beverage made from grain, properly colored and flavored, 
according to the prevailing custom of the trade." The Secretary said, "I agree 
with my Solicitor." I immediately called his attention to the fact that there 
was only one body appointed by the Act to make an initial decision as to what 
constituted misbranding or adulteration of foods and drugs, namely, the Bureau 
of Chemistry. The only authority recognized by the Act to review this decision 
was a United States judge. I said, "The Bureau of Chemistry decision will 
therefore stand until over-ruled by a court of the United States." He replied, 
"I will not take your construction of the law, but that of my Solicitor; that is 
what he is here for, to interpret the law to me." This act of the Secretary and 
Solicitor constituted the first abrogation of the Food Law by executive 
authority and laid the foundation for a succession of similar violations.
   As a matter of history I may say that I obeyed the Secretary's injunction to 
make no report of this matter to the press. Immediately on leaving his office I 
went to the Cosmos Club and called up Mr. Loeb, secretary to President 
Roosevelt. I related to him what had happened in the Secretary's office and 
asked him if he could come over to the Club and take luncheon with me. Loeb was 
immediately and greatly interested in this decision. I pointed out in detail all 
the circumstances which led to it. I felt certain that Secretary Wilson would go 
to President Roosevelt with this illegal decision.
   I asked Mr. Loeb to acquaint the President of what had happened and to get a 
promise from him, if possible, that he would not give his approval to Secretary 
Wilson's decision until I had an opportunity to lay the whole matter before him. 
Later in the day Mr. Loeb called me over the telephone and said the President 
had agreed to this delay. Meanwhile the papers were full of this decision. It 
had been given to the press by some one of the four people who were present at 
the conference. I was not the one who gave it to the press.
   The following day was one of rejoicing by the rectifiers all over the 
country. They felt assured that F. I. D. 45 would be repealed without carrying 
the matter to the courts. There was a slight error in their judgment. For two 
weeks subsequent to this event the newspapers were filled with accounts of 
pilgrimages, under the leadership mostly of United States Senators, of bodies of 
rectifiers to the White House. Senator Foraker conveyed the rectifiers from 
Cincinnati. Senator Lodge accompanied those from Boston. Senator Penrose led the 
Philadelphia delegation. Meanwhile I was patiently waiting word from President 
Roosevelt. One day while I was taking lunch at Harvey's a telephone message from 
my office said the President would see me at two o'clock. I had prepared a 
movable laboratory with all the elements necessary to manufacture ten year old
Bourbon or Scotch in a minute. I carried with me samples of pure, refined 
alcohol from half a dozen different sources, namely from corn, barley, molasses, 
and fruits, all alike in character, and all of equal degree of purity. I carried 
an assortment of colors and flavors used by the rectifiers. When I drove up to 
the White House with this peripatetic laboratory, I encountered a dozen or more 
newspaper men who were eager to know what it all meant. I told them I had been 
invited to give a lecture to the President of the United States. One of the 
well-informed correspondents said to me: "You may think so, but you will find 
that the President will do the lecturing." I carried my laboratory into the 
President's office where I was politely received by the attendant and told that 
the President would soon be in. In five minutes my audience appeared, the 
President of the United States, and Mr. William Loeb, his secretary. For two 
hours I performed experiments showing the President how all kinds of rectified 
whisky, brandy and rum could be made in a minute. I received his undivided 
attention. If he interrupted me at all it was only to ask for more definite 
information on some points. At the close of this two hour lecture he came around 
to my side of the table and grasped my hand, saying to me, "Dr. Wiley, I have 
heard nothing but whisky for the last three weeks, and you are the first person 
who has ever given me a single idea that I can comprehend. Then turning to Mr. 
Loeb he said, "Send all these documents and samples, together with Dr. Wiley's 
brief to Mr. Bonaparte, and ask Mr. Bonaparte to advise me on this question." Mr 
Bonaparte did advise him. He sustained every single point that had been 
presented by the Bureau as to what is really whisky. President Roosevelt ordered 
the Commissioner of Internal Revenue and the Secretary of Agriculture, both of 
whom were friends of the rectifiers, to publish jointly a decision defining 
whisky in the light of evidence which had been presented. Thus ended the first 
attempt to violate the Food Law by a complete triumph of the law itself. The 
Secretary was convicted but not convinced. The breach thus made was never 
closed. The Secretary was irrevocably allied with the foes of the food law.
   The decision of the Attorney-General was sent to the White House on April 10, 
1907. President Roosevelt wrote a letter to Secretary Wilson in the following 
  The White House,
  Washington, April 10, 1907.
  My Dear Mr. Secretary:
     In accordance with your suggestion,* I have submitted the matter concerning 
  the proper labeling of whisky under the pure-food law to the Department of 
  Justice. I inclose the Attorney-General's opinion. I agree with this opinion 
  and direct that action be taken in accordance with it.
     Straight whisky will be labeled as such.
     A mixture of two or more straight whiskies will be labeled 'Blended whisky' 
  or 'whiskies.'
     A mixture of straight whisky and ethyl alcohol, provided that there is a 
  sufficient amount of straight whisky to make it genuinely a 'mixture,' will be 
  labeled as a compound of, or compounded with, pure grain distillate.
     Imitation whisky will be labeled as such.
     Sincerely yours,
  Hon. James Wilson,
    Secretary of Agriculture."
  *The President sent this problem to Bonaparte at his own suggestion as I have 
  already stated, not by request of Secretary Wilson. 
   The full opinion of Attorney-General Bonaparte is printed as an appendix to 
Food Inspection Decision 65, issued April 12th, 1907. The Attorney-General's 
opinion is a blend of legal learning and charming sarcasm. Those who are 
interested in documents of this kind will do well to read the opinion in full.
   As an illustration of the keen satire used by Attorney-General Bonaparte I 
quote the following closing paragraphs of his decision:
     " The following seem to me appropriate specimen brands or labels for (1) 
  "straight" whisky, (2) a mixture of two or more "straight" whiskies, (3) a 
  mixture of "straight" whisky and ethyl alcohol, and (4) ethyl alcohol flavored 
  and colored so as to taste, smell, and look like whisky:
     (1) Semper Idem Whisky: A pure, straight whisky mellowed by age.
     (2) E Pluribus Unum Whisky: A blend of pure, straight whiskies with all the 
  merits of each.
     (3) Modern Improved Whisky: A compound of pure grain distillates, mellow 
  and free from harmful impurities.
     (4) Something Better than Whisky: An imitation under the pure food law, 
  free from fusel oil and other impurities.
     In the third definition it is assumed that both the whisky and the alcohol 
  are distilled from grain." 
   It is hardly necessary to add that the rectifiers who had been engaged for 
many years under Government license in the manufacture of compounded and 
imitation whiskeys failed to avail themselves of the method of labeling 
suggested by the Attorney-General. After having secured the support of Secretary 
Wilson for continuing their frauds upon the consumers of whisky, they were 
dumbfounded by their failure to have F. I. D. 45 repealed. They were still more 
greatly disturbed by having F. I. D. 65 substituted in its place. They were 
defeated and discouraged, but not eliminated.
   They immediately took steps to secure Court decisions for the purpose of 
declaring both F. I. D. 45 and F. I. D. 65 illegal and void. To this end they 
were wise in selecting the courts before which they proposed to bring their 
   They filed their first petition before the Federal District Court, sitting at 
Cincinnati, Hon. A. C. Thompson being the presiding judge. Cincinnati was the 
great center of the rectifying industry. For years the rectifiers had been 
making in that city compounded and imitation whiskies designated by 
high-sounding names and sold under claims of great age. This product was 
derisively known locally as "Nigger whisky." The income from these spurious 
whiskies was too large to be given up without a struggle. Some of the most 
influential citizens of Cincinnati were engaged in the rectifying industry. They 
were also supporters of the dominant political party. For this reason the court 
of Cincinnati was considered the most favorable one in which to secure a 
judgment declaring these standards of whisky illegal. The filing of this suit 
was not made known to me until the Saturday previous to the hearing of the case 
on the following Monday. I received an S. 0. S. telegram from the United States 
District Attorney asking for my immediate presence in Cincinnati. I had only 
time to secure a copy of the brief which I had left with President Roosevelt, 
and which he had forwarded to Attorney-General Bonaparte, and take the train on 
Sunday afternoon. The train was late and I did not reach the District Attorney's 
office until 15 minutes before ten o'clock on Monday morning. The District 
Attorney was utterly helpless in this matter. He knew nothing of the case and it 
was impossible to instruct him in fifteen minutes. I told him the only hope was 
to obtain from the judge a postponement of the trial, in order that we might 
secure proper witnesses and that he should have opportunity to understand the 
case properly. When Court opened the District Attorney promptly moved for a 
postponement of two weeks. The attorney for the rectifiers, Mr. Warwick M. 
Hough, vigorously opposed any postponement. The Judge also seemed reluctant to 
grant the District Attorney's petition. Finally, however, he consented to an 
adjournment of one week. At the end of the week the District Attorney was fully 
acquainted with the nature of the proceeding and a number of competent witnesses 
were on hand to defend the Government's position. Judge Thompson was 
acknowledged to be one of the best District judges on the Federal Bench. He was 
held in high esteem, not only for his legal ability, but as a citizen, always 
interested in what was right and proper in regard to civic duty. At the 
beginning of the trial he announced that it must be completed on that day, 
including an hour granted to each side to make arguments before the court. He 
also declared that each side should have an equal time for presenting the views 
of witnesses. The matter for the state was forcibly presented, particularly by 
Dr. Joseph P. Remington of Philadelphia, and Dr. John Uri Lloyd of Cincinnati. 
Competent chemical testimony was also presented by the Bureau of Chemistry 
before the Court.
   After the arguments were made and the trial was over, all the witnesses for 
the Government congregated in the office of the District United States Attorney. 
We were speculating as to what the verdict would be. The Judge had taken the 
matter under consideration and we knew there would not be a decision on that 
day. The District Attorney was very hopeful of securing a favorable verdict and 
based that hope largely on the testimony of Dr. John Uri Lloyd, who was not only 
a most eminent pharmaceutical chemist but a very personal friend of the Judge 
himself. We of course realized that the Judge's opinion would not in any way be 
influenced by personal friendship, and this was particularly the case because 
some of the most prominent rectifiers of Cincinnati were also intimate friends 
of the Judge.. While we were discussing these probabilities a messenger came 
from the Judge's chambers with a note to the District Attorney asking that he be 
furnished with a copy of the brief of Dr. Wiley which had been offered in 
evidence in the court. We all felt that this was an important request, believing 
that if the Judge would read this report in full he would not be inclined to 
support the contention of the rectifiers. Our fondest hopes in this matter were 
justified. When Judge Thompson issued his report in about three weeks subsequent 
to the trial, it was found to be a complete vindication of F. I. D. 45 and F. I. 
D. 65.
   Not at all discouraged by their failure, the rectifiers appealed to other 
Federal Courts in other localities. Among these localities were Springfield, 
Illinois; Covington, Kentucky; Indianapolis, Indiana; Buffalo, New York; 
Baltimore, Maryland; and San Francisco, California. In each case the opinions of 
the Court were entirely in harmony with the original opinion of Judge Thompson. 
Meanwhile the Bureau of Chemistry, shackled by the Board of Food and Drug 
Inspection, deemed it inadvisable to bring any cases against rectified spirits 
masquerading as whisky as long as the matter was still before the courts. It was 
known that finally the decision would have to be made by the courts anyway and 
any punitory steps might prove to be entirely futile.
   Mr. H. Parker Willis in an article published at this time made the following 
comment on this procedure under the heading, "The Public Will Not Buy Whisky 
Labeled 'Imitation.'"
     "The new regulations, and the cases brought under them, developed one 
  particularly interesting fact in the situation: the distillers and rectifiers 
  could not dispose of their goods for drinking, either as alcohol or as 
  'imitation whisky.' The actual name 'whisky,' without modification, was 
  necessary to disposal of their product, notwithstanding that it was precisely 
  the same article under another name. This was clearly brought out when the 
  Western distilleries applied to Judge Van Fleet of the Northern District of 
  California for an injunction restraining the marking of alcohol as ordered by 
  the Bureau of Chemistry, alleging that they had been obliged to shut down 
  their plant through inability to dispose of their product when marked 
     "Because of the hostile attitude of the courts, whisky manufacturers 
  resolved to turn their attention in other directions. They had hoped to secure 
  an easy victory through the judicial machinery of the Government; but having 
  been defeated there, and knowing that there was nothing to expect from 
  Congress, they now turned again to the Executive. The new rules, with the 
  requirement that whisky be branded as 'imitation' when it consisted of neutral 
  spirits primarily, had gone into effect July 1, 1908, although prior to that 
  date the distilling interests had accumulated as large stocks as possible 
  under the old regulations for marking in order that they might continue to 
  send out their goods as 'rye,' 'Bourbon,' or 'copper distilled' whisky, 
  instead of being compelled to use the term 'imitation.'
     "Pressure upon the Roosevelt administration for action designed to 
  'relieve' the rectifiers now became acute. Congressman Longworth, son-in-law 
  of President Roosevelt, and friend of representatives of the Cincinnati 
  distilling district, exerted himself in behalf of the rectifiers, and a simlar 
  position was taken by numerous other members of Congress. Representative 
  Perkins of New York, now chairman of the Foreign Relations Committee of the 
  House and a historian of some reputation, had already devoted himself to 
  securing a favorable ruling in the interest of Duffy's Pure Malt Whisky. An 
  interesting correspondence passed between Mr. Perkins and the Department of 
  Agriculture, in the course of which Mr. Perkins noted for the benefit of 
  Secretary Wilson that 'the Duffy Malt Whisky Company * * * is controlled by 
  our most prominent and leading citizens, and I trust matters can be adjusted 
  in such a way as not to injure a long-established industry.' Other statesmen 
  wrote that the Duffy Company 'controlled considerable political influence.' 
  Not to be outdistanced in his efforts for the rectifying interests was 
  Representative Sherman, now Vice-President.
     "During the winter a committee of rectifiers and spirit distillers, 
  represented by A. J. Sunstein and others, visited Washington, and sought to 
  persuade the administration of the great harm that was being done to the 
  rectifying interests. The President finally harkened to the representations of 
  the rectifiers, and appointed a 'Whisky Commission,' consisting of Secretary 
  of Agriculture James Wilson, Dr. F. L. Dunlap, Associate Chief of the Bureau 
  of Chemistry, and John G. Capers, head of the Bureau of Internal Revenue of 
  the Treasury Department. Secretary Wilson and Commissioner Capers were already 
  known as advocates of the views of the rectified whisky interests, while Dr. 
  Dunlap had shown a strong disposition to dissent from the existing rulings of 
  the Government. There was a good deal of mystery about this Commission. 
  Although the Associated Press sent out a frank statement by President 
  Roosevelt to the effect that such a Commission had been appointed, Secretary 
  Wilson took occasion to assure newspaper men that the Commission did not exist 
  as such, and that the President had merely asked for a little advice. 
  Commissioner Capers admitted the existence of the Commission, but Dr. Dunlap 
  said nothing.
     "After several weeks of discussion and inquiry, the three advisers reported 
  to the President in favor of allowing liquor made from neutral spirits to be 
  designated as whisky. Mr. Sunstein and his committee had said that they would 
  be satisfied if they could, be allowed to brand their liquor as 'redistilled 
  whisky,' 'rectified whisky,' or 'neutral whisky.' The three commissioners, or 
  conferees, now advised that some such plan be followed, telling the President 
  that this was substantially the verdict that had been arrived at by the Royal 
  Commission. on Whisky, which had been sitting in England, and which, they 
  stated, had decided that any spirits made from grain was whisky. In a letter 
  written on behalf of the Commission, Dr. Dunlap said, 'It is my opinion that 
  the term 'whisky' should not be denied to neutral spirits diluted with water 
  to a proper strength and colored with caramel,' though he recommended the use 
  of some qualifying name, such as 'rectified whisky.' 
   The approval of President Roosevelt of Attorney-General Bonaparte's 
definitions of whisky created a curious environment in the Bureau of Chemistry. 
The Secretary of Agriculture, the associate chemist, Dr. Dunlap, the solicitor, 
Mr. George P. McCabe, together with the chief of the Bureau of Internal Revenue, 
Mr. John G. Capers, were all on the other side of the question. The President, 
Attorney-General Bonaparte, and the Chief of the Bureau of Chemistry were all 
agreed on the definitions.
   It was hard, however, to get Court action. Attorney-General Bonaparte was 
very insistent that cases be brought in order to test the accuracy of his 
definitions. Cases could only be brought, under the existing conditions, when a 
majority of the Board of Food and Drug Inspection would initial requests either 
for criminal action or seizure of goods. There was much hesitation on the part 
of two members of the Board of Food and Drug Inspection in regard to this 
matter. It was not until the Secretary of Agriculture ordered them to proceed 
that they joined me in bringing actions before the Court. All effort to bring a 
criminal action, however, was negatived. We did bring a number of cases of 
seizure of goods; that is, action in rem. In every ease of this kind which 
reached the courts, unanimous approval of the Attorney-General's opinion on 
whisky was obtained. In all seven cases were finally brought to the bar of 
justice out of hundreds recommended by: the Bureau.
   CASE 1. Notice of Judgment 15. The United States of America, Libelant, vs. 93 
Cases, containing 12 bottles each, of alleged Whisky, C. Person's Sons, 
Defendants, before the Western District Court of New York, Case No. 79. Judge, 
the Hon. John R. Hazel.
   This Whisky was adjudged adulterated and misbranded and, under the law, the 
seized liquor was ordered to be destroyed or, after proper branding, delivered 
to the claimants under a bond of $2,000 that it would not be sold in 
contravention of the existing law. Date of judgment, August 27, 1908.
   CASE 2. Notice of Judgment 45. United States vs. 4 Barrels of Liquid 
Purporting to be Whisky. This case was brought in the District of Columbia, Case 
No. 790. The libel alleged that the product was, 4 'colored and mixed by the 
addition of coloring matter, in a manner whereby inferiority is concealed and in 
order to imitate old mature whisky and whereby the said product does imitate and 
appear to be old mature whisky."
   The Judge who issued the decree of condemnation was the Hon. Thomas H. 
Anderson. Date of the Judgment, March 13, 1909.
   CASE 3. Notice of Judgment 68. United States of America vs. Fifty Barrels of 
Whisky, Labeled "Bourbon Whisky," Manufactured in New Orleans from fermented 
molasses. The presiding Judge was the Hon. Thomas J. Morris of Baltimore. The 
decree of condemnation was in the same terms as those already reported. In his 
decision Judge Morris was particularly luminous. This was a jury trial. After 
the evidence had been given and the counsel for the defense had addressed the 
jury, Judge Morris said: "I will not call upon the counsel for the United States 
to reply. The case as it is presented to the jury is a very clear one. I reject 
the only prayer offered by the defense. Really, that prayer concedes the 
misbranding of the liquor, and asks me to say to the jury that if they shall 
find that this was done under the control- and by the agents of the United 
States, the United States is estopped from proceeding to condemn these goods and 
forfeit the goods from misbranding." The examination of this whisky by the 
Bureau of Chemistry disclosed that it was distilled from fermented molasses, and 
was called Bourbon Whisky. Date of Judgment, May 14, 1909.
   CASE 4. Notice of Judgment 112. United States vs. 10 Cases of Quinine-Whisky, 
Case No. 10142, the Hon. Kenesaw M. Landis, United States District Judge. The 
goods were ordered destroyed or to be released on a bond of $1,000. Not to be 
sold contrary. to the Food and Drugs Act as is usual in such cases. Date of 
Judgment, November 20, 1909.
   CASE 5. Notice of Judgment 349. United States vs. H. A. Thierman & Co. of 
Louisville, Ky. Seizure of five barrels of whisky transported from Kentucky to 
Indiana. The name of the Judge in this case is not disclosed. The decision was 
not rendered until after the advent of the administration of President Taft, and 
the notice of judgment carried this statement: "This decree was rendered prior 
to the issuing of Food Inspection Decision 113, which revoked Food Inspection 
Decisions 45, 65, 95. In other words, the Secretary of Agriculture, under the 
law, was forced to, regard the opinion of this Court although it had 
been-determined that the Bonaparte decision, which was the one which had been 
supported by all of these decisions, was soon to be revoked by the action of the 
United States itself, thus nullifying the Court's decision to the effect that 
the Bonaparte opinion was wholly legal. Date of Judgment, May 17, 1910.
   CASE 6. Notice of Judgment 353. United States vs. the Hannis Distilling Co. 
of Philadelphia, Pa. The usual course was followed and the decision rendered, 
but the name of the Judge is not given. The date of the decision is May 17, 
1910. It has the same notice in regard to decision 113 as carried by the former 
   CASE 7. The final case is Notice of Judgment 361. United States vs, Davis & 
Atkins of Richmond, Va. The name of the Judge is not given, but the whisky was 
condemned in the same manner as those just preceding. This also contains the 
same notice in regard to decision No. 113 as the two preceding cases.
   This makes seven cases in the Federal Courts supporting the validity of the 
opinion of Attorney-General Bonaparte, and in not a single instance did any 
United States Court before which the matter was presented, nullify that 
decision. Nevertheless, in spite of all these Court decisions the opinion of the 
Attorney-General Bonaparte was revoked by executive authority and a 
diametrically different opinion supporting all the contentions of the rectifiers 
substituted in its place. Thereafter, no mention of any case against whisky is 
found in the Notices of Judgment. It was not necessary because the United States 
authorities, in plain violation of Court decisions, had decided that the 
Bonaparte opinion was all wrong.
   I never was able, even in the two years that intervened from the time of the 
decision of Attorney-General Bonaparte to the close of the Roosevelt 
administration, to get the Board of Food and Drug Inspection to approve of any 
criminal case against any dealer who was an offender of the law. I have all the 
correspondence in which Attorney-General Bonaparte urged that his decision be 
taken before the Courts, and in every instance when it did reach the Court he 
was sustained. In all the attempts of rectifiers to nullify his decision by 
bringing Court cases themselves, and this they did in eight separate cases, the 
rulings of the Court were always against them.
   To show the attitude of the Board of Food and Drug Inspection in this matter, 
I made determined efforts to bring a case against Duffy's Pure Malt Whisky, 
either to seize the whisky or to bring a criminal action against the 
manufacturers. Every move in this direction was blocked by my collegues on the 
board. Under date of October 3rd, 1908, the following note in regard to this 
matter was made:
     "Doctor Dunlap states that he initialed the first named seizure under a 
  misapprehension, thinking that the Duffy Malt Whisky hearing was to be held 
  here instead of in Buffalo, although it had been signed by the Secretary. I 
  understood from Doctor Dunlap that the matter was held up by the Solicitor and 
  that it would not be sent to the District Attorney until after the report of 
  the hearing at Buffalo had been received. In regard to the seizure of October 
  3, he refused to initial the recommendation on the ground that it would not be 
  proper to do so until the hearing of the Buffalo case had been received. I 
  stated to him that the cases were entirely distinct, the Buffalo case being a 
  criminal action recommended several weeks ago and the seizures are actions to 
  be brought at the time mentioned, namely September 30 and October 3, 1908, a 
  and if not seized without delay the goods would escape. I stated that Duffy's 
  Malt Whisky was one of the most gigantic frauds of the age and a flagrant 
  violation of the law, and that there was no necessity that we delay at all in 
  the matter. He still, however, refused to initial." 
   This sufficiently illustrates the determined efforts of my colleagues to 
protect Duffy's Pure Malt Whisky from being molested either by seizure or 
bringing any criminal case against the maker. The few cases that were brought 
against rectified whisky were at the direct request of the Attorney-General, 
followed by the order of Secretary Wilson to proceed as the Attorney-General 
   On the 3rd of October, 1907, 1 addressed the Solicitor of the Department of 
Agriculture, as follows:
     "In a recent conversation with me the Attorney-General urged that cases be 
  prepared as soon as possible in the whisky case. Fortunately, acting under the 
  direction of the Secretary, we had already secured a great many cases. I have 
  prepared three of these typical cases to be sent to the Attorney-General 
  according to his request, with the least delay possible. They represent types 
  of mixture which might well be seized under the law for a test case. The 
  Attorney-General informed me that he believed Mr. Hough was trifling with him 
  and it was not possible to secure any agreement and that he proposed to go 
  ahead at once if such an agreement as dictated by him should not be 
  acceptable. These cases are all ready for seizure and I urge that they be sent 
  to the Attorney-General as requested without delay." 
   Following this, I cited to the Solicitor fifteen localities in the City of 
Washington where illegal whisky was on sale, describing each one minutely.
   On November 6, 1907, the Attorney-General addressed a letter to the Secretary 
of Agriculture, in which he informed him that he bad been unable to come to any 
agreement on a statement of facts, and, therefore--"it will be appropriate for 
you to proceed with the enforcement of the law relating to the subject of 
labeling whisky in accordance with the procedure prescribed by law."
   In the midst of these discussions the Secretary of Agriculture received a 
letter from John G. Capers, Commissioner of Internal Revenue, looking to a 
reopening of the questions decided by Attorney-General Bonaparte which it 
appears was due to the express desire of President Roosevelt. The letter dated 
Dec. 17, 1907, is as follows:
     "I have the honor to acknowledge receipt of your letter of December 13, 
  written following the conference between you, Mr. McCabe of your Department, 
  and Assistant Secretary Winthrop and myself of this Department. In conformity 
  with the suggestions made by you at that time and the suggestion made in your 
  letter of December 2, the Secretary of the Treasury has referred the matter to 
  the Attorney-General for an opinion upon the matter of labeling whisky, etc., 
  under the pure food law in its application to internal revenue laws, as well 
  as to the Department of Agriculture as set out in his opinion approved by the 
  President and addressed to you April 10 last.
     "This action by the Secretary is also taken in view of the expressed desire 
  of the President in a communication addressed to the Secretary December 8, 
  that the matter be taken up by the Treasury Department. The Attorney-General 
  has been requested to render an opinion as early as possible." 
   I referred to this movement on the part of the President in a letter which I 
wrote to Dr. James H. Shepard of Brookings, S. D., Jan. 4, 1908, which I quote:
     "I cannot tell you much about the present status of the whisky case except 
  this: The rectifiers, through Senator Hopkins and other influential senators, 
  made a proposal to the President that they would withdraw all suits to set 
  aside the present regulations if the present regulations could be modified so 
  as to suit their views, or in so far as this could be. I understand the 
  President appointed a commission consisting of Commissioner Capers, the 
  Secretary of Agriculture, and Dr. Dunlap, to make the necessary revision of 
  the regulations. In so far as I know the revision is to be made on a brief 
  submitted by the rectifiers. I do not think that anyone who is in favor of 
  maintaining the present regulations requiring imitation and compound whiskies 
  to be so marked has been invited to appear before the Commission. Commissioner 
  Capers has said in at least two printed interviews that he was going as far as 
  he could to meet the requests of the rectifiers, even if possible to open up 
  the question of like substances. I don't know what attitude either the 
  Secretary or Dr. Dunlap will take in this matter but I would like to wager you 
  a peanut that I could guess. 
   President Roosevelt communicated to Attorney-General Bonaparte the protests 
that had been made against his decision, and their plea for a rehearing. On May 
29, 1907, Attorney-General Bonaparte filed with the President his reasons for 
not re-opening the case in which he made the following statements:
  "The President, 
    The White House.
  SIR: In accordance with your instructions, I gave a hearing on Wednesday, May 
  15, to persons desiring to submit to the Department criticism or other comment 
  on my opinion of April 10 last past, as to the construction of section 8 of 
  the act approved June 30, 1906, and generally known as the Pure-Food Law. 
  About thirty persons appeared on this occasion and a number of oral arguments 
  were presented; some critical and some approbatory of the opinion in question. 
  At the conclusion of this argument I announced my willingness to receive and 
  consider any matters in writing which might be submitted to me touching its 
  subject-matter, and, in response to several requests for a further hearing, 
  stated that I would give these requests due consideration and announce later 
  whether I saw any sufficient reason to comply with them. As heretofore stated 
  to you verbally, I do not think any useful purpose would be served by another 
  oral argument, and, with your approval, I have, therefore, announced that, in 
  this respect, the matter must be considered closed. I received a large number 
  of written communications from various persons commenting on the opinion in 
  question, and I have carefully considered all of them. I find no reason to 
  withdraw the said opinion, or to modify it in any respect, and I respectfully 
  report that, in my judgment, this opinion correctly states the law on the 
  subject to which it relates."
     (Signed) Charles J. Bonaparte.

Attorney-General, who wrote the answer to "What Is Whisky?"
while Roosevelt was President

   Attorney-General Bonaparte issued three short state papers on the subject 
"What is Whisky?" The first of these papers bears the date April 10, 1907. In
this paper the question of what is whisky was answered in harmony with the 
provisions of the food and drugs act. The points covered in this paper were so 
distasteful to the rectifying interests as to call for numerous requests for 
rehearing. The Attorney-General granted them a rehearing. On May 29th, 1907, he 
gave his new opinion in which he stated that he found no reason to modify in any 
respect the opinion of April 10th. Toward the close of the Roosevelt 
Administration, the rectifiers made a last desperate effort to have the 
Attorney-General's opinion changed. This has been thoroughly set out in the 
quotations from the article of H. Parker Willis. The new effort was evidently 
inaugurated by the President who often referred to Dr. Dunlap, Associate Chemist 
of the Bureau of Chemistry, as "my chemist." In the light of Dr. Dunlap's career 
in the Bureau no one will likely dispute Roosevelt's often repeated claim to 
proprietorship. The Committee having in charge this matter was thoroughly 
devoted to the rectifying interests. It is only natural therefore that the 
report they brought in, which was written by Dr. Dunlap, would be favorable 
thereto. The gist of Dr. Dunlap's report is as follows:
     "Under the Pure Food Law as administered now, neutral spirits, diluted to 
  proper strength and colored with caramel, must be marked 'imitation whisky.' 
  The spirit distillers request that this name be not forced upon them, but that 
  they may use in its place one of the three names, 'neutral whisky,' 'rectified 
  whisky,' or 'redistilled whisky.' * * * It is my opinion that the term 
  'whisky' should not be denied to neutral spirits diluted with water to a 
  proper strength and colored with caramel. I believe that the use of the term 
  'whisky' on such a product should be qualified by some term which will carry 
  notice to the consumer of the nature of the product. For this purpose the term 
  'neutral whisky,' 'redistilled whisky,' and 'rectified whisky,' have been 
   Mr. Bonaparte proceeds to comment on this suggestion of Dr. Dunlap's with 
rare sarcasm for which lie was distinguished. He says:
     "It seems obvious, from the juxtaposition of these extracts from my two 
  opinions and those from Dr. Dunlap's letter, that the Associate Chemist of the 
  Department of Agriculture suggests that, on the question of the construction 
  of a statute, a very carefully considered and reconsidered opinion of the 
  Attorney-General should be disregarded. He bases this recommendation upon 
  certain conclusions which he says have been reached by the English 'Royal 
  Commission on whisky and other potable spirits,' in what is described as an 
  'interim report.'
     "He describes this Commission as composed of 'eminent scientific men,' but 
  it does not appear from his letter that the said Commission consists of 
  lawyers, or that they have had under consideration the construction of the Act 
  of Congress generally known as the Pure Food Law. I am, therefore, unable to 
  recognize their conclusions as entitled to weight in determining the above 
  mentioned question of statutory construction, and I may add that I am unable 
  to see how these conclusions, in so far as stated by Dr. Dunlap, have any 
  bearing upon the question considered in my two opinions.
     "It appears to me that these 'eminent scientific men,' in these 
  conclusions, made suggestions as to what legislation on the subject should 
  contain. They do not assume to construe legislation already enacted. 
  Especially they do not express any opinions as to the construction of an 
  American law dealing with American conditions.
     "Inasmuch, however, as I cannot fail to recognize in Dr. Dunlap's 
  recommendation a challenge of the correctness of my conclusions as announced 
  in the two opinions heretofore rendered you, I think it is but proper that I 
  should call your attention to certain judicial decisions rendered upon the 
  questions discussed in his letter subsequently to the date of the said two 
  opinions. In the case of Levy vs. Uri, the Court of Appeals of the District of 
  Columbia, speaking by Mr. Justice Robb, says on this question: 
       'Each kind of whisky mentioned has its own peculiar flavor and character 
    and is sought after as a beverage because of that flavor and character. 
    Neutral spirits, on the contrary, as the term suggests, is a colorless 
    liquid, has neither flavor nor character, and is not a beverage at all. It 
    may be produced from any fermented substance, such as corn, potatoes, and 
    sugar beets.
       'Formerly it was used exclusively in the arts, but with the advent of 
    cheaper methods of production it has been palmed off on the public as a 
    beverage by mixing it with something to give it flavor and character. Since 
    it costs far less to produce than rye whisky, it is apparent that its use by 
    the distiller increases his profits in proportion as the public is deceived. 
    * * *
       'As before stated, neutral spirits is not a beverage, has none of the 
    distinguishing characteristics of rye whisky, and is, therefore, matter of 
    another kind." 
   Mr. Bonaparte then proceeds to quote the decision of Judge Thompson of the 
Southern District of Ohio and also the opinion of the District Court of the 
Southern District of Illinois, and refers to other Court decisions in which his 
definitions of whisky had been unanimously supported. He then says:
     "It thus appears that the correctness of the conclusions reached by this 
  Department in the two opinions to which I have referred has been tested in at 
  least four decisions by competent courts upon the precise question discussed 
  in Dr. Dunlap's letter; and the decision in every instance has been that what 
  he advises is forbidden by the true construction of the Pure Food Law. So far 
  as I am aware, there has been no decision by any court to the contrary. * * * 
  At present, however, in so far as informed by the decisions heretofore made on 
  this question, I can only advise you that the conclusions announced in the 
  opinions of April 10th and May 29th, 1907, are sound, and that to give effect 
  to Dr. Dunlap's suggestions would be to violate the Pure Food Law." 
   The action of President Roosevelt in again sustaining the Attorney-General 
received universal press support. Mr. Louis Ludlow, then President of the 
National Press Club and now member of Congress elect described the event in the 
Indianapolis Star under date of February 23rd, 1909. He says:
     " The President indorses and makes public an order of Attorney-General 
  Bonaparte, which declares the position of the rectifiers and the conclusions 
  of the commission to be in error. Dr. Wiley's views on whisky are thus 
   In the same publication under date of Feb. 24, 1909, is an editorial, "A 
Victory for Wiley," from which I quote the following:
     "For the third time Attorney-General Bonaparte has decided that neutral 
  spirits diluted with water to a proper strength and colored with caramel is 
  not whisky, but 'imitation whisky' and must be labeled as such. This was the 
  ruling of Dr. Wiley. * * * It is evident that the authorities have no 
  intention of weakening the Pure Food Law any further at the present time. The 
  benzoate of soda ruling is enough for the present time. It is realized, of 
  course, that there will always be pressure to have the law construed favorably 
  to those who want to evade it. Probably it will gradually be much weakened. 
  One concession will be made, and then another. The people will be less 
  watchful, and at last we may find that we have virtually no law at all." 
   This prophetic disaster has long since been realized.
   In view of the positive character of Mr. Roosevelt to stand by his own 
decisions, at first it was thought that this investigation was not at his 
suggestion. A letter written by H. Parker Willis, published in Collier's Weekly 
of April 6, 1912, throws additional light upon this matter. Mr. Willis says in 
his letter:
     Secretary Wilson was now in a position of peculiar strength. He had full 
  charge of the Food and Drugs Act; he understood the precedents that had been 
  established during the past four years; the matter had been referred to the 
  Department of Justice by his own assent; he had nothing to do but apply the 
  law vigorously. But it was well known that neither he nor his Solicitor 
  approved the decision in the whisky case. The politicians were more and more 
  active. Mr. Perkins of New York brought strenuous pressure to bear upon the 
  Department of Agriculture in behalf of Duffy's Pure Malt Whisky, which would 
  have to be labeled 'imitation' under the new rules. He was strongly seconded 
  by Vice President Sherman. President Roosevelt finally designated Secretary 
  Wilson, Dr. P. L. Dunlap, and John G. Capers, the head of the Bureau of 
  Internal Revenue, as a Whisky Commission. Secretary Wilson was thus given full 
  power to shape the decision as he pleased. A report from him would have 
  settled the situation once for all. No such report was forthcoming. Secretary 
  Wilson even denied in conversation that any such commission existed, and 
  finally the three men rendered a report in favor of allowing liquor made from 
  alcohol to be branded as 'rectified whisky,' thus giving the use of the word 
  whisky to the interests that had been demanding it." 
   There is no longer any doubt that the new committee to inquire into the 
accuracy of the opinions of Attorney-General Bonaparte was appointed by the 
President. Dr. Dunlap, in submitting the report of this committee under date of 
February 19, 1909, says:
     "In accordance with the request of the President, I have continued the 
  consideration of the labeling propositions submitted to him by the spirit 
   The Secretary of Agriculture in a letter to the Hon. W. W. Armstrong, member 
of the State Senate of New York, under date of December 17, 1908, says:
     "Pursuant to my conversation with you of yesterday in regard to a proposed 
  hearing on the 21st instant concerning 'Duffy's Pure Malt Whisky,' I beg to 
  inform you that this hearing will be postponed pending the report of the 
  gentlemen appointed by the President to take up questions in connection with 
  the labeling of products such as you manufacture." 
   On December 13, four days prior to the writing of this letter by the 
Secretary of Agriculture, the Washington Post carried this editorial under the 
caption "Keep the Ginger in the Pure Food Law!"
     "It is good to read a direct denial of the report that the President has 
  reopened the whole subject of what is whisky. The story was that he has 
  selected the Commissioner of Internal Revenue and one of the officers of the 
  Agricultural Department to take up the existing regulations and revise them 
  with the Secretary of Agriculture. * * *
     "Above everything, the President has not reopened the main question. * * * 
  At the instance of Dr. Wiley that query has been answered with a loud 'NO.' 
  Any other answer would have jeopardized the whole * * * regulations governing 
  'compounded' and 'imitation' whisky. To the outsider those regulations would 
  seem to be already sufficiently considerate. 
   A few days before the Washington Post had carried the story of the 
appointment of the above commission. It printed another news story as follows:
   "The uncertainty caused some of the large distilleries of the country to 
present the matter to the President to-day. They were introduced to him by
Senator Hopkins and Representative Graff, of Illinois. Secretary Wilson and Mr. 
Capers were present."
   Although the President repudiated the report of his own commission and again 
sustained the opinion of Attorney-General Bonaparte, the activities of the Board 
of Food and Drug Inspection in protecting the interests of Duffy's Malt Whisky 
and Canadian Club Whisky were continued right along just as if nothing had 
   On June 12, 1908, after a large number of shipments of Canadian Club whisky 
had been seized by the officials of the pure-food law, the following order was 
     "By direction of the Secretary, no more seizures of imported whiskys are to 
  be made until further orders. There have been twenty-one cases reported and, 
  in the Secretary's opinion, that number is sufficient for the present. Please 
  cause the necessary instructions to be sent to the Inspectors. 
     Very respectfully,
        (Signed) G. P. McCabe
            Acting Chairman,
            Board of Food and Drug Inspection." 
   The reason for suspension of seizures is probably the following incident 
which occured at the hearing accorded Duffy's Malt Whisky representative. I 
quote from this hearing:
     "Senator Armstrong urged that the Bill of Libel against carloads of goods 
  shipped to Boston be dismissed, stating that the Company had stopped shipment. 
  Dr. Wiley suggested that if they would stop interstate shipments of this 
  material, it would be very proper to grant them additional time until after 
  election. Mr. Perkins, Mr. Armstrong and Mr. Duffy raised vigorous objections, 
  stating that the firm had been in business for fifty years, had spent millions 
  of dollars in advertising, had built up a trade, and that it ought not to be 
  interfered with." 
   Following this hearing came the order of suspension of further seizures.
   These official data show that the President appointed this commission, that 
the commission considered the subjects referred to it, that it made its report 
through Dr. Dunlap on the 19th of February, 1909, and that the Attorney-General 
most decidedly and emphatically repudiated the findings of this commission and 
the President thereupon approved the Attorney-General's report.
   An unconfirmed rumor current at the time was the effect that Bonaparte told 
the President that would immediately resign if his report did not again receive 
   Mr. H. Parker Willis says:
     "Attorney-General Bonaparte was now in an embarrassing position. He had 
  already rendered his opinion with reference to the nature of whisky, and the 
  proper methods of branding it under the existing law of the United States. 
  President Roosevelt had sent Mr. Bonaparte the report of the Whisky 
  Commission, which had just been transmitted to the White House, with a request 
  for the Attorney-General's opinion.
     " Two questions presented themselves to Mr. Bonaparte--whether he should 
  reverse himself and accept the findings of Messrs. Wilson, Capers, and Dunlap, 
  or whether he should stand neutral and idle, in case President Roosevelt 
  should see fit to put into effect his Commission's recommendations. Mr. 
  Bonaparte decided both of these points negatively. In a rather scathing letter 
  to President Roosevelt, he pointed out that the Whisky Commission had based 
  its suggestions almost entirely upon work that had been done in England by a 
  body not known to American law,--the British Royal Commission,--while he had 
  found it his duty to guide himself by the laws of the United States. He could 
  not, therefore, as a matter of law, consent to the proposal now made. Noting 
  that 'the assistant chemist of the Department of Agriculture suggests that on 
  the question of the construction of a statute (the Pure Food Law) a very 
  carefully considered and reconsidered opinion of the Attorney-General should 
  be disregarded,' he went on to say that he could not 'fail to recognize in Dr. 
  Dunlap's recommendation a challenge of the correctness of' his conclusions. He 
  therefore called attention to the interpretations of the Food Law, in line 
  with the views of the Department of Justice that had lately been handed down 
  by the courts. It was stated by officers of the Government that he had 
  privately conveyed to the President the intimation that although only about a 
  week remained before his termination of office as Attorney-General, he should 
  feel compelled to resign, in the event that the President saw fit to overrule 
  his decision in the whisky matter. The President had been largely animated by 
  his own sense of fair play in giving the rectifiers every opportunity to set 
  forth their ideas; and he now made his own stand evident by approving Mr. 
  Bonaparte's views, and continuing the existing methods of marking and branding 
   In the Washington Herald of Feb. 27, 1909, is an editorial from which I 
     Our good right hand, palm up, to Mr. Charles Joseph Bonaparte in warm 
  congratulation extended! 'Whisky is whisky, and nothing else is whisky,' says 
  the Attorney-General; and so sayeth his Chief, the President of the United 
  States! * * *
     "We regard this as -a great victory for the common people, and we trust 
  they appreciate fully its momentous significance. Heretofore every old thing 
  that could assume the most remote whisky-like disguise has labeled itself 
  whisky, and posed in the open market as the real, genuine, simon-pure article. 
  * * *
     "Mr. Bonaparte need not fear that it is not the people's tremendous 
  applause he hears ringing in his ears! It is just that very thing. Pat with 
  him they stand. 'Whisky is whisky, and nothing else is whisky.'" 
   If the rectifiers had only been endowed with prophetic vision, they would not 
have made a continuous fight for two long years against the Attorney-General and 
the President and the Food Law. They would not have commenced numerous actions 
in Federal Courts, all of which they lost with monotonous regularity. They would 
not have spent hundreds of thousands of dollars in retaining great advocates 
like Mr. Choate, and others of the same character as mentioned in the article by 
H. Parker Willis. They would simply have waited. This final rebuff by President 
Roosevelt occurred on the 19th of February, 1909, thirteen days. before the 
advent of the new administration. On the morning of the 5th of March the storm 
clouds which had darkened the sky of the rectifiers for two long weary years 
broke asunder. The rays of victory shot through the rift, and the full sunlight 
of triumph shone forth. The principles which had guided the Roosevelt 
administration were eternal and just. The law was not altered, but its 
interpretation was radically changed in the interest of the rectifiers of whisky 
and other alcoholic distilled beverages.
   When the last of these cases was finally decided in the District Courts, 
President Taft came into the White House. A very remarkable event is now to be 
recorded. He ordered a rehearing of the whisky problem. A classmate of President 
Taft, Mr. Lloyd Bowers, had been made Solicitor of the Department of Justice. 
President Taft first requested Mr. Capers to conduct the new hearings on whisky. 
This was equivalent to instructing the jury to bring in a verdict. Owing to the 
protests of the straight whisky interests President Taft finally appointed his 
Solicitor-General, Lloyd Bowers, to hold these hearings. They have been printed 
under the title "Proceedings Before and By Direction of the President Concerning 
the Meaning of Whisky." They cover 1328 printed pages. Following is the order of 
the President constituting this tribunal:
  In the Office of the Solicitor-General, 
  Thursday, April 8, 1909.
     These proceeding are had pursuant to an order of the President of the 
  United States, reading as follows:
     A number of distillers and importers of spirits and whisky, represented by 
  Lawrence Maxwell, Esq., Hon. Joseph H. Choate, Alfred Lucking, Warwick M. 
  Hough, and Hon. W. W. Armstrong, having appealed to the President for a 
  hearing with respect to the order issued by the Commissioner of Internal 
  Revenue, known as Order No. 723, pursuant to the rules and regulations for the 
  enforcement of the food and drugs act and food and inspection decision No. 65, 
  promulgated and made by the Secretary of Agriculture under date of May 14, 
  1908, claiming that the provisions of said order are in violation of the terms 
  of the said act in that they require to be branded as imitations or compounds, 
  or otherwise, whiskies which have well-settled names in the trade, and which 
  it was not the intention of Congress by the said food and drugs act to require 
  to be described by any other designation; and certain distillers of whisky 
  having appeared by Edmund W. Taylor and the Hon. John G. Carlisle, after 
  consideration the matter is hereby referred to Hon. Lloyd W. Bowers, 
  Solicitor-General of the United States, to take testimony and report to the 
  President his opinion upon the following points, namely:

     What was the article called whisky as known (1) to the manufacturers, (2) 
  to the trade, and (3) to the consumers at and prior to the date of the passage 
  of the pure food law?

     What did the term whisky include?

     Was there included in the term whisky any maximum or minimum of congeneric 
  substances as necessary in order that distilled spirits should be properly 
  designated whisky?

     Was there any abuse in the application of the term whisky to articles not 
  properly falling within the definition of that term at and prior to the 
  passage of the pure food law, which it was the intention of Congress to 
  correct by the provisions of that act?

     Is the term whisky as a drug applicable to a different product than whisky 
  as a beverage? If so, in what particulars?

     The Solicitor-General will from time to time determine the extent and 
  character of the hearing and will report with his opinion the evidence taken 
  by him pursuant hereto.
  (No. 1061, Apr. 8, 1909.) 
     (Signed) WM. H. TAFT. 

Quoting further from the article by H. Parker Willis: 
     "When President Taft entered the White House, on the 4th of March, 1909, 
  the rectifying interests were by no means inclined to let the whisky question 
  rest. They knew that, while Secretary of War, he had been decidedly friendly 
  to their views at the time when the subject had originally come up before the 
  Cabinet for settlement. It was determined to make a fresh and vigorous effort 
  to secure a reversal of the Roosevelt rulings that would permit the rectifiers 
  to continue placing their neutral spirits on the market under the name of 
  whisky. Consequently, shortly after the President took office, he was 
  approached by all the original interests that had urged a change in the 
  methods of marking whisky and, yielding to their pressure, he consented to 
  reopen the question and to hear argument in person.
     "Early in April a distinguished array of counsel appeared at the White 
  House. Straight whisky interests had employed ex-Secretary John G. Carlisle to 
  coöperate with Edmund W. Taylor, the original representative of the straight 
  whisky distilleries, while for the rectifying interests appeared Joseph H. 
  Choate, former ambassador to England, Senator Armstrong of New York, Lawrence 
  Maxwell, Esq., and Warwick M. Hough, the high-priced lawyer who had been sent 
  to Washington as a representative of rectified interests and of the wholesale 
  liquor trade. Mr. Alfred Lucking also appeared in behalf of the Canadian Club 
  whisky interests, which had found themselves hampered by the rulings of the 
  Government, and in whose interest the powerful offices of Ambassador James 
  Bryce had been enlisted with President Roosevelt to secure the admission of 
  the Canadian product without the imitation label.
     "President Taft listened to the arguments on both sides, and showed a 
  strong disposition to refer the matter directly to Commissioner Capers, the 
  head of the Bureau of Internal Revenue. Mr. Capers, however, had long been 
  associated with the work of the Bureau of Internal Revenue, under the old 
  regulations which permitted the marking of rectified spirits as whisky; and he 
  was known to be favorable to the retention of the old system of markings, 
  having shown this feeling when, in conjunction with Secretary Wilson and Dr. 
  Dunlap, he had recommended the changes demanded by the rectifying and blending 
  interests. The President's disposition to throw the question back into adverse 
  hands at once called forth a protest from the straight whisky men, based upon 
  the ground that Mr. Capers was somewhat prejudiced, and President Taft. 
  necessarily recognizing the justice of this claim, directed Solicitor-General 
  Bowers to serve in place of Mr. Capers.
     "The points that Mr. Bowers was to take up included an inquiry as to the 
  true definition of the term 'whisky' at the time of the passage of the Pure 
  Food Law, and an inquiry into the chemical constituents whose presence 
  necessarily designated a liquor as being unmistakably whisky. He was further 
  called upon to determine whether, as urged by the 'Duffy's Pure Malt Whisky' 
  interests, whisky as a drug was a different product from whisky as a beverage. 
  The old controversy burst forth afresh, and, beginning April 8, (1909), Mr. 
  Bowers conducted almost continuous hearings, lasting nearly a month. More than 
  twelve hundred pages of printed testimony were taken. At times the room in 
  which the meetings were held resembled a chemical laboratory more than it did 
  a courtroom, while at others, as the witnesses sat about a table, freely 
  tasting the various samples that had been submitted for examination, it was 
  strongly reminiscent of a German drinking club. 
   At the completion of the testimony and the arguments of the attorneys the 
Solicitor-General made his report to the President on May 24, 1909. This report 
is found in the Whisky hearing above referred to beginning on page 1243. Mr., 
Bowers' opinion, summarized is as follows:
     "1. A neutral spirit derived by distillation from any thing else than grain 
  has not been known to the consumer as whisky, whether or not it was colored or 
  flavored or both colored and flavored; and a neutral spirit derived by 
  distillation from grain, but lacking a substantial amount of by-products 
  (other than alcohol) which are derived by distillation from grain and give 
  distinctive flavor and properties, has not been known to the consumer as 
  whisky, whether or not it was colored or flavored or both colored and 
     2. A neutral spirit derived by distillation from grain, but lacking a 
  substantial amount of by-products derived by distillation from grain and 
  giving distinctive flavor and properties, was not at or prior to the passage 
  of the Pure Food law, and has not since been, whisky.
     3. There was included in the term whisky a minimum of congeneric substances 
  as necessary in order that the distilled spirit should be properly designated 
  as whisky, viz., such substantial amount of those congeneric substances as is 
  requisite to give to whisky distinctive flavor and properties, differing from 
  the flavor and properties of alcohol and of other distilled spirits. There was 
  no maximum of such congeneric substances, however, except as potability might 
     4. There were many abuses in the trade. The evidence, however, has not been 
  such as to make possible, or to justify an attempt at, enumeration of the 
  particular abuses, beyond saying that they included the application of the 
  term 'whisky' to spirits distilled from other substances than grain, or to 
  mixtures of such spirits with whisky, or to neutral spirits derived from grain 
  but not whisky within the description of it given in answer to question II, or 
  to such mixtures of neutral spirits and whisky as do not fall within the 
  description of whisky given in answer to question II.
     5. The term whisky as a drug is not applicable to a different product than 
  whisky as a beverage." 

Solicitor-General, who conducted the re-hearing of "What Is Whisky?"
   On page 404 of my brief on whisky (unprinted) I draw the following 
     "FIRST: The principle enunciated in Food Inspection Decision No. 45 is 
  correct, and no modification of this decision should be made.
     "SECOND: When Neutral spirits are diluted with water and artificially 
  colored and flavored, the resulting product should not be called whisky. Under 
  the ruling of the Internal Revenue such a product may be called imitation 
  whisky if not sold as a genuine whisky, or spurious if it be sold as a genuine 
     "THIRD: If whisky be mixed with neutral spirits and colored and flavored, 
  it forms that well-known class of bodies called compounds, and should be 
  marked 'Compound of whisky and neutral spirits' or some similar appellation.
     "FOURTH: If two or more whiskies be mixed together, the resulting mixture 
  should be marked 'blend,' 'A mixture of two or more whiskies' or some similar 
   Perhaps no public decision ever issued received such unanimous condemnation 
as Bowers' report. Everybody was dissatisfied. Warwick M. Hough and Lawrence 
Maxwell objected to it because it denied to neutral spirit the name of whisky. 
Joseph H. Choate and Alfred Lueking objected on behalf of Canadian Club whiskies 
for the same reasons. John G. Carlisle and Edmund W. Taylor objected on behalf 
of the straight whisky producers because it permitted the addition of alcohol to 
whisky provided the congeners which gave the whisky its character were not too 
greatly diluted. Wm. W. Armstrong objected to it on behalf of Duffy's Malt 
Whisky. J. D. Rouse objected to it because it denied alcohol made from molasses 
to be called whisky. The Columbus Distilling Company objected to it for the same 
reason. The Michigan Chemical Company objected to it because alcohol to be mixed 
with other whisky must be made out of grain. All appealed to the President of 
the United States for help. The President appointed a hearing which was held in 
the Executive Mansion on June 28, 1909. There were present the President of the 
United States, presiding; Hon. George W. Wickersham, Attorney-General of the 
United States; Hon. James Wilson, Secretary of Agriculture; Mr. Warwick M. 
Hough, Mr. Lawrence Maxwell, Mr. Joseph H. Choate, Hon. John G. Carlisle, Mr. 
Edmund W. Taylor, Mr. William W. Armstrong, Mr. J. D. Rouse, Mr. Bullitt, Mr. 
Youngberg, Mr. Brangier, Mr. Smith, Mr. Thompson, and others.
   THE PRESIDENT: We are here this morning to hear the exceptions to a report, 
and I believe that the report has the first indication of correctness in that 
there are exceptions from every side.
   MR. CARLISLE: Nobody satisfied.
   THE PRESIDENT: Nobody satisfied.
   President Taft, after considering the protests made by the rectifiers in the 
decision of the Solicitor-General on the whisky question, disapproved the most 
important of these findings of his own Solicitor-General and adopted in toto 
many of the principles presented to him by the rectifiers. However, he suggested 
a method of labelling which was in some respects distasteful to the rectifiers.
     "It is undoubtedly true that the liquor trade has been disgracefully full 
  of frauds upon the public by false labels; but these frauds did not consist in 
  palming off something which was not whisky as whisky, but in palming one kind 
  of whisky as another and better kind of whisky. Whisky made of rectified or 
  redistilled or neutral spirits and given a color and flavor by burnt sugar, 
  made in a few days, was often branded as Bourbon or Rye straight whisky. The 
  way to remedy this evil is not to attempt to change the meaning and scope of 
  the term 'whisky,' accorded to it for one hundred years, and narrow it to 
  include only straight whisky; and there is nothing in the Pure Food Law that 
  warrants the inference of such an intention by Congress. The way to do it is 
  to require a branding in connection with the use of the term 'whisky' which 
  will indicate just what kind of whisky the package contains. Thus, straight 
  whiskies may be branded as such and may be accompanied by the legend 'aged in 
  wood.' Whisky made from rectified, redistilled, or neutral spirits may be 
  branded as whisky made from rectified, redistilled, or neutral spirits, as the 
  case may be.
     "With this result, the question arises what ought the order to be so that 
  the purpose of the Pure Food Law can be carried out. The term 'straight 
  whisky' is well understood in the trade and well understood by consumers. 
  There is no reason, therefore, why those who make straight whisky may not have 
  the brand upon their barrels of straight whisky with further descriptive terms 
  as 'Bourbon' or 'Rye' whisky, as the composition of the grain used may 
  justify, and they may properly add, if they choose, that it is aged in the 
     " Those who make whisky of 'rectified,' 'redistilled,' or 'neutral' spirits 
  can not complain if, in order to prevent further frauds, they are required to 
  use a brand which shall show exactly the kind of whisky they are selling. For 
  that reason it seems to me fair to require them to brand their product as 
  'whisky made from rectified spirits,' or 'whisky made from redistilled 
  spirits,' or 'whisky made from neutral spirits,' as the case may be; and if 
  aged in the wood, as sometimes is the case with this class of whiskies, they 
  may add this fact. * * *
     "This opinion will be certified to the Secretary of the Treasury, the 
  Secretary of Agriculture, and the Secretary of Commerce and Labor to prepare 
  the regulation in accordance herewith, under the Pure Food Law; and to the 
  Secretary of the Treasury and the Commissioner of Internal Revenue to prepare 
  the proper regulation under the Internal Revenue Law.
        (Signed) WILLIAM H. TAFT.
     The White House, 
     December 27, 1909. 
   President Taft in revising the opinion of his Solicitor-General that neutral 
spirits or alcohol, even when carrying flavor, were not entitled to be defined 
as whisky, also revised the opinion of his distinguished father, Alphonso Taft, 
who rendered an opinion, as Attorney-General, on the 21st of August, 1876, as 
     "I agree with my predecessor's opinion that the shipment of alcohol under 
  the name of whisky (the offense charged), is a violation of section 3449, 
  Revised Statutes, notwithstanding 'the trade,' generally may have fallen into 
  such a practice. Alcohol and whisky are, unquestionably, different articles, 
  in contemplation of law, as they are in fact, having different qualities and 
  different values. It appears, also, that they are placed by common carriers 
  under different rates in their freighting schedules; * * *
     "When the act prescribes how spirits may be stored or bonded, it must be 
  presumed that it means spirits that have been lawfully distilled.
     "This being patent, it is obviously important that there should be an 
  absolute agreement in character of all the acts which together go to make up 
  the act of shipping; and I must believe that the law intends to secure this. * 
  * * This would be difficult or impossible if shippers, carriers, consignees, 
  etc., were permitted to use one name for another, at their pleasure, or for 
  any purpose."
        Very respectfully,
            (Signed) Alphonso Taft, 
   Accordingly the three Secretaries, who under the authority of the law were 
empowered to make rules and regulations for carrying the law into effect, 
prepared the definitions which did not, however, follow President Taft's 
directions above.
   Food Inspection Decision No. 113 is as follows:
     " Under the Food and Drugs Act of June 30, 1906, all unmixed distilled 
  spirits from grain, colored and flavored with harmless color and flavor, in 
  the customary ways, either by the charred barrel process, or by the addition 
  of caramel and harmless flavor, if of potable strength and not less than 80° 
  proof, are entitled to the name whisky without qualification.* If the proof be 
  less than 80°, i.e., if more water be added, the actual proof must be stated 
  upon the label and this requirement applies as well to blends and compounds of 
     "Whiskies of the same or different kinds, i.e., straight whisky, rectified 
  whisky, redistilled whisky and neutral spirits whisky are like substances* and 
  mixtures of such whiskies, with or without harmless color or flavor used for 
  purposes of coloring and flavoring only, are blends under the law and must be 
  so labeled. In labeling blends the Act requires two things to be stated upon 
  the label to bring the blended product within the exception provided by the 
  statute: First, the blend must be labeled, branded or tagged so as to plainly 
  indicate that it is a blend, in other words that it is composed of two or more 
  like substances, which in the case of whisky must each be of itself a whisky 
  and Second, the word 'blend' must be plainly stated upon the package in which 
  the mixture is offered for sale. A mixture of whiskies, therefore, with or 
  without harmless coloring or flavoring, used for coloring and flavoring only, 
  is correctly labeled 'Kerwan Whisky. A Blend of Whiskies.'*
  *All three of these statements are not in harmony with Taft's decision.
    "Since the term whisky is restricted to distillates from grain, and 
  distillates from other sources are unlike substances to distillates from 
  grain, such distillates from other sources without admixture with grain 
  distillates are misbranded if labeled whisky without qualification, or as a 
  blend of whiskies. However, mixtures of whisky, with a potable alcoholic 
  distillate from sources other than grain, such as cane, fruit or vegetables, 
  are not misbranded if labeled compound whisky, provided the following 
  requirements of the law are complied with: First, that the product shall be 
  labeled, branded or tagged so as to plainly indicate that it is a compound, 
  i.e., not a mixture of like substances, in this case whiskies; and, Second, 
  that the word 'Compound' is plainly stated upon the package in which the 
  mixture is offered for sale. For example, a mixture of whisky, in quantity 
  sufficient to dominate the character of the mixture, with a potable alcoholic 
  distillate from sources other than grain and including harmless color and 
  flavor is correctly labeled 'Kerwan Whisky. A compound of whisky and cane 
  distillate.' Unmixed potable alcoholic distillates from sources other than 
  grain and including harmless color or flavor, are not misbranded if labeled 
  'Imitation Whisky.'
     "When an essence or oil is added to a distillate of grain, which without 
  such addition is entitled to the name whisky, and the effect of such addition 
  is to produce a product which simulates a whisky of another kind different 
  from the kind of whisky to which the essence is added, the mixture is an 
  imitation of the particular kind of whisky which is simulated, e.g., if rye 
  essence be added to a highly rectified distillate of corn, the mixture is 
  misbranded if labeled rye whisky. Such a mixture is not misbranded if labeled 
  'Whisky--Imitation Rye.'
     "Nothing in the Food and Drugs Act inhibits any truthful statement upon the 
  label of any product subject to its terms, such as the particular kind or 
  kinds of whisky, vended as whisky or as blends or compounds thereof, but when 
  descriptive matter, qualifying the name whisky, is placed upon the label, it 
  must be strictly true, and not misleading in any particular. The law makes no 
  allowance for seller's praise upon the label, if false or misleading, and the 
  product is misbranded if a false or misleading statement be made upon one part 
  of the label and the truth about the product be stated upon another part. 
  Similarly a product is misbranded if the label is false or misleading through 
  the use of a trade-marked statement, design or device. The fact that a phrase, 
  design or device is registered in the U. S. Patent Office gives no license for 
  its deceptive use. All descriptive matter qualifying or particularizing the 
  kind of whisky, whether volunteered or required by the law to be stated, as in 
  the case of blends and compounds, must be given due prominence as compared 
  with the size of type and the background in which the name whisky appears, so 
  that the label as a whole shall not be misleading in any particular.
     Food Inspection Decisions 45, 65, 95 and 98 and all rulings in conflict 
  herewith, are hereby revoked.
     (Signed) Franklin MacVeagh,
              Secretary of the Treasury.
            James Wilson,
              Secretary of Agriculture. 
            Charles Nagel,
              Secretary of Commerce and Labor.
  Washington, D. C., February 16, 1910." 
   This decision directly contrary to the findings of many Federal Courts, 
promulgated by the three Secretaries charged with the duty of making rules and 
regulations for carrying the law into effect, is the most astonishing exhibition 
of illegality ever perpetrated. No higher flight of open contempt of judicial 
findings has ever been made by any one whose duty it is to follow the courts' 
decisions. It would have been bad enough as an attempt at construing the meaning 
of a law prior to judicial opinions. In the face of the facts it is a flagrant 
contempt of Court.
   The regulations made by the three Secretaries are most remarkable. In the 
first place they attempt to decide what is an adulteration or misbranding, a 
function which was never committed to them but was specifically given to the 
Bureau of Chemistry.
   In the second place, they utterly failed to include the fundamental 
principles of branding laid down by President Taft in the above extract from his 
letter. There is absolutely no trace in this decision of requiring whisky to be 
labeled neutral spirit whisky, or a blend of that whisky and a whisky made from 
neutral spirits. Those were the fundamental principles which President Taft laid 
down for correct labeling. These two phrases were highly objectionable to the 
rectifiers. Under the very nose of the President the rectifiers so controlled 
the action of the three Secretaries that neither one of these phrases was 
incorporated into the necessary labeling of whiskies made from neutral spirits. 
Not only was every decision of the courts violated by this order, but President 
Taft's specific directions for labeling were also disregarded. It is very 
strange that the President himself did not make a protest against the utter 
disregard of the fundamental principles upon which his labeling order was based.
   On publication of this food inspection decision in which the rectifiers 
gained everything they had lost in the decisions of the Federal Courts, their 
petitions of appeal to the Circuit Courts were in all cases withdrawn. By 
executive proclamation they had obtained what the courts had denied them. All 
the interests which were engaged in adulterating and misbranding foods were 
greatly heartened by this victory of the rectifiers. If one class of misbranders 
and adulterators could receive immunity by executive order, why not apply the 
same principle to all forms of adulteration and misbranding?
   I am very strongly of the opinion that this approval of neutral spirits 
colored and flavored as whisky and this, of course, would apply to gin and rum, 
and all other distilled spirits, including brandy, and by implication also, to 
adulterated and misbranded beer and wine, was one of the principal causes which 
enabled the doctrine of prohibition to achieve such a sweeping victory a few 
years afterward under the stress of promoting the public welfare during the 
period of the world war. At least in so far as I was concerned I had spent many 
years of hard labor in trying to have all kinds of distilled spirits as well as 
fermented beverages comply with ethical requirements and pure food laws. The 
dikes that held the swelling floods of adulterations and misbranding of our 
beverages were broken down and waves of food adulterations swept over and 
devastated the country.
   On the morning after the President issued his proclamation Mr. Lloyd Bowers 
called me over the telephone. He said: "Have you read the President's decision?" 
I said, "I have, with great astonishment." He asked, "What do you think about 
it?" I replied, "I feel as if I had been spanked," to which he replied, "So do 
I." This was the last time I heard Lloyd Bowers' voice. The next morning the 
newspapers carried the notice that the Solicitor-General had left Washington for 
a few weeks' rest. About three weeks after that I saw, with great regret, a 
notice of his death. Thus passed a great lawyer and a great jurist. I think I 
was right in thinking that probably his premature death was due to a broken 
heart. Nobody was satisfied with the laborious effort which he had made. Upon 
the whole my deep sympathy was with Lloyd Bowers. I was impressed with the 
conviction that he was earnestly seeking the truth. Three-fourths of his, 
decision was in harmony with my own views, so that I believe that he was at 
least three-fourths right.
   On the evening after the President Is decision was published Mr. Charles H. 
Butler, reporter of the Supreme Court, entertained the Supreme Court at his 
residence, 1535 Eye St., N. W. I was one of the invited guests at this function. 
Among other members of the Supreme Court who were there was Justice Harlan of 
Kentucky. Accosting me he said, "Come over here, my boy, where there are not so 
many people. I would like to talk to you." Retiring to a secluded spot somewhat 
distant from the punch bowl we sat down upon a sofa. Justice Harlan said to me, 
"What is this I hear about holding Supreme Court in the White House?" I replied, 
"You know as much about it as I do, Mr. Justice, you have read the newspapers." 
To which he replied, "Things are coming to a pretty pass in this country. The 
question of 'What is whisky?' was on its way to my Court and now it will never 
reach there."
   What a pathetic void in classic Supreme Court decisions was caused when 
Justice Harlan was denied this opportunity of writing the opinion of the Supreme 
Court on this case!
   Fortunately the rectifiers did not have many years to enjoy the fruits of 
their great victory. The enactment of the Prohibition Amendment and the Volstead 
Act placed all dealings in beverage alcoholic drinks outside of the law. The 
question now is not "What is whisky?" but "Where is whisky?" The adulterations 
of the bootleg brand are now more deadly than were the combinations of the 
rectifiers in the old days. These illegal decisions that permit alcohol to 
masquerade as whisky have never been repealed. They remain sonorous witnesses of 
the triumph of the unholy.
   All of these disasters would have been prevented if the food law had been 
administered as Congress enacted it. One of the most amazing events in the 
recital I have just made is to see the three Secretaries who were authorized to 
make rules and regulations for carrying out the food law attaching their 
signatures to a decision which clearly prevented the law from being enforced. 
This misconception of the law has continued until the present day and has been 
the cause of all the crimes committed against it.


Dr. Andrew Saul

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